State v. McAdoo

Wagner, Judge,

delivered the opinion of the court.

This is an infoi’mation, in the nature of a quo warranto, filed by the Attorney General against Foster J. McAdoo, re *453 quiring liim to show by what authority he exercises the functions and duties of the office of sheriff of Laclede county.

No answer has been filed in this court by MeAdoo to the writ, which has been duly served and returned.

It appears from the record, that at an election held in Laclede county on the 5th day of September last, for sheriff of said county, the defendant and several other persons were candidates for the said office of sheriff, and that he received the highest number of votes cast, but had failed to take, file and subscribe the oath required of candidates by the Constitution of this State, within fifteen days next preceding the election.

By sec. 8 of Art. II. of the Constitution, no vote in any election by the people shall be cast up, nor shall any certificate of election be granted to any person who shall not within fifteen days next preceding such election have taken, subscribed and filed said oath.

MeAdoo, having omitted to comply with the requirements of the Constitution, was ineligible; and the casting up the votes, and issuing the certificate to him, were acts unauthorized by law, and null and void. We are of opinion, therefore, that, in exercising the rights and privileges, and receiving the emoluments of said office, he has been guilty of usurpation, and we accordingly adjudge that he be ousted therefrom.

Having no evidence that he acted from any other than mistaken views, we forbear imposing any fine on him, and only order that he pay the costs.

Judge Holmes concurs; Judge Lovelace absent.